Search Neutrality Before Net Neutrality?

Google’s influence on the terms of the upcoming FCC spectrum auction has gotten a lot of news coverage. I’ve praised Google’s approach to copyright, criticized it on transparency, but now I’m back to praise on this issue. It’s fighting for net neutrality–a big concern given AT&T’s apparent censorship of Pearl Jam for anti-Bush lyrics (and, even if you believe it was a “mistake” by AT&T, the power of the carriers the incident demonstrates).

However, Google should also think about its own obligations as a de facto common carrier in the digital age. Even the Wall Street Journal recognizes its unique status as digital bottleneck. In a July editorial, Holman Jenkins said

Google’s . . . dominance in search and advertising. . . [and] its ability to control which Web sites and Web businesses receive traffic make[] it a far likelier candidate for ‘public utility’ treatment than the . . . players who make up the broadband world.

In a recent paper I co-authored with Oren Bracha (to be submitted to law reviews in a few days), we examine whether some net neutrality principles should extend to dominant search engines like Google. The paper is constructively criticized here and here; I’ll soon post some responses from Oren and me.

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Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

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